' Ch. Muhammad Ibrahim Zia, J.--This appeal by leave of the Court is directed against the judgment of the High Court dated 28.2.2014, whereby writ petition filed by the respondent has been accepted and the appellants, herein, are directed to acquire the land according to law.
2.The necessary facts forming the background of the appeal as stated are that an evacuee piece of land comprising Survey No, 7 (old), 26 (new), measuring 2 kanal 2 marla, situate at village Domel, Tehsil and District Muzaffarabad, was allotted to respondent, herein, on 9.10.1956. It is alleged that after the allotment, the land in dispute remained in possession of the respondent for a certain period, however, the appellants took over the possession of the same without payment of any compensation. The respondent preferred an application before the learned Custodian of Evacuee Property against the unlawful possession of the appellants, herein. The learned Custodian, after necessary proceedings declared the respondent as genuine allottee of the landed property vide order dated 13.11.2003. The respondent filed a writ of mandamus in the High Court alleging therein, that despite the order of the Custodian, neither the appellants acquired the above mentioned land nor handed over its possession to him. The High Court, after necessary proceedings, issued the appropriate writ through the impugned judgment, hence, this appeal by leave of the Court.
3.In this appeal, arguments were heard on 05.05.2015. Mr. Muzaffar Hussain Mughal, Advocate, the learned counsel for the appellants argued that the disputed piece of land has continuously been under the occupation and use of the appellants which was not available for allotment. The respondent has no legal claim. The department has constructed the buildings over the suit land, since long. The whole claim of the allotment to the respondent, is baseless. He further submitted that neither the Custodian nor the High Court has properly appreciated the proposition involved in the case, thus, the impugned judgment is not maintainable.
4.Conversely, Raja Amjad Ali Khan, Advocate, the learned counsel for the respondents, submitted that the land is admittedly allotted to the respondent who is a refugee and duly entitled for allotment. The matter of allotment has since long been settled by the competent authority i.e,, the Custodian. The appellants are usurper of the suit land. The right of property is a constitutionally guaranteed fundamental right and the State for the benefit of its departments cannot usurp the property right of any citizen without adopting the proper legal course. If at all, the land is acquired for public purpose it has to be dealt with according to law by proper acquisition and payment of compensation thereof; otherwise the rent of the land for the period for which it has been illegally occupied and used by the appellants be paid to the respondent and the possession be handed over to him. He submitted that the impugned judgment is quite constitutional requiring no interference.
5.While hearing the arguments, when both the learned counsel were confronted regarding the factual proposition involved in this case, both stated that they are not in possession of the requisite record. In this state of affairs, the judgment was kept reserved, however, while drafting the proposed judgment, on minute examination of record, we deemed it proper for doing complete justice to provide an opportunity of re-hearing to the parties, thus, the following order was passed on 14.05.2015:-- "After hearing the learned counsel for the parties judgment was kept reserved. While drafting the proposecfludgment, we felt handicapped as on both sides, neither proper legal assistance has been provided nor necessary record has been produced to resolve the controversy raised in this case. Thus, for doing complete justice with the parties, we have summoned the revenue record including the file of Proprietary Rights Transfer from the office of Custodian of Evacuee Property.
The examination of the summoned record depicted novel proposition. Hence, we felt advised to rehear the case on the following points:-- (i)The previous Survey No, 7, new-26 situate at Domail Muzaffarabad, according to the revenue record is a Whether the land under the use of can be allotted?
(ii) According to the PRTO, the respondent allottee has submitted a declaration form in which the property subject matter of the present case is not included and he has submitted his affidavit declaring that except the land mentioned in the affidavit no other land is allotted to him. The affidavit is filed on 19.1.1981 and this survey number is not mentioned in the affidavit or declaration form. Whether in presence of this declaration form and affidavit of respondent, he can claim allotment of the land subject matter of the present case.?
' Therefore, counsel for the parties shall be issued notices for fresh arguments especially on the above formulated proposition. Counsel for the parties may peruse the summoned record in the registry office before the arguments. To come up on 3rd June, 2015."
6.The re-hearing of the case was made on 12.05.2015. Mr. Muzaffar Hussain Mughal, Advocate, the learned counsel for the appellants submitted that according to the nature of the land the same is not available for allotment, therefore, the claim of the respondent allottee of the land is illegal and not acceptable as the nature of the land is (temple). This legal proposition involved in the case has already been settled by this Court in the case reported as Rehmatullah Khan and 3 others vs. Azad Govt. & 13 others [2014 SCR 1385]. He further submitted that the respondent's claim of allotment is baseless and bogus. He is an allottee of some other land. He has submitted the declaration form and personal affidavit for obtaining the Proprietary Rights Transfer Order and categorically stated that he is the only allottee of the land comprising Survey Nos. 6, 8, 10-min. No other land is alloted to him anywhere in Azad Jammu and Kashmir or Pakistan. He has also submitted the personal affidavit on 19.01.1981 to this extent, thus, by his own conduct he is barred to claim the allotment of the piece of land, i.e,, the subject matter of this appeal. He further submitted that the Order of the learned Custodian declaring the respondent as allottee of the land on the face of it is illegal as prior to this order the learned Custodian has granted the Proprietary Rights Transfer Order regarding the allotted land to the respondent, wherein, it has been categorically mentioned that no other land is allotted to him. Thus, the Custodian's order is against its own record, hence, not sustainable, therefore, the whole claim of allotment is against law and the facts.
7.Conversely, Raja Amjad Ali Khan, Advocate, the learned counsel for the respondent submitted that the impugned judgment has rightly been passed by the High Court. The respondent has been declared allottee of the land by the competent authority, i.e,, the Custodian. The non-mentioning of survey number in the declaration form and affidavit is mere an omission. In fact, this number is included in the allotment chit. He further submitted that the nature of the land does not show the use of land for religious purpose rather it is Thakardowara and same kinds of the land have been allotted everywhere. At the time of allotment no was existing rather it was a cultivated piece of land and even the appellants have raised construction on this land. Thus, it cannot be said that according to the kind of land the same is not available for allotment. He further submitted that the order of allotment has attained finality, hence, the same cannot be re-opened at this stage.
Therefore, the appeal of the appellants is not maintainable.
8. We have appreciated the arguments of the learned counsel for the parties and also examined the record. In this appeal, the dispute regarding the piece of land comprising old survey number 7, new survey number 26, situate at Dome Muzaffarabad, is involved. According to the claim of both the parties, two vital propositions are involved; the first is the nature of the land; and the other, is allotment of the land to the respondent. According to record, the entry in the revenue record regarding the land bearing old Survey No, 7, measuring 2 kanal, is Ghair Mumkin Mandir iii) whereas 2 marla is These entries remained as such in the revenue record till the new settlement. In the new settlement, new survey number 26 has been allotted. Thus, it is established from the record that the nature of land is (temple) dedicated for the religious purposes.
9. The definition of evacuee property given in the law i.e,, Evacuee Property Act, 1957, is as follows:-- "3. "evacuee property" means any property in which an evacuee has any right or interest (whether personally or as a trustee or a beneficiary or in any other capacity), and includes:
(a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same; or
(b) property of an evacuee obtained by transfer on or after the first day of March, 1947, until the transfer is confirmed by the Custodian; ' but does not include --
(i) any ornaments or wearing apparel or any cooking vessels or other household effects in the immediate possession of an evacuee; or
(ii) any property belonging to a joint stock company registered office of which was situated, before the fifteenth day of August, 1947, in any place in the territories now comprising India and continues to be so situated after the same date;"
Thus, it is clear that the land which is reserved for religious purposes, does not fall within the definition of evacuee property as the religions and ideologies are boundary less. Neither these migrate nor can be displaced.
10. According to the injunctions of the Holy Qur'an, " there is no restraint in the matter of religion".
Same like according to the express provisions of the Holy Qur'an and the Sunnah of the Holy Prophet (P.B.U.H), in Islam, great emphasize has been made on respect and regard for all the religions and their religious symbols. Our this view is fortified from the judgment of this Court in Rehmatullah Khan and others' case (2014 SCR 13851, wherein while dealing with the identical proposition, it has been observed as under:-- "20. In the memo. Of writ petition as well as appeal before this Court and also in arguments, the learned counsel for the appellants has raised factual proposition that the land comprising old Survey No, 171, present 156, measuring 4 kanals, 4 marlas, situated at Naloochi is permanently reserved for Gordwara i.e for religious purposes of Sikhs. Thus, the same cannot be utilized for any other purpose. Although, the point has been raised in the pleadings by the appellants but the same has not been properly rebutted by the respondents in their written statements. All the written statements filed by the respondents are totally silent on this factual aspect.
21. The copies of revenue record referred to by the counsel for the appellants clearly speak that in column of ownership and cultivation of land bearing old Survey No, 171, present, 156, entry of "Gordwara" has been incorporated. In view of this state of affairs, this factual aspect without necessary details providing by the parties in the pleadings cannot be finally resolved by the Court in vacuum. As this important serious point was raised which also finds support from the revenue record but remained unattended by the respondents as well as the learned High Court. According to the provision of section 3 of the Constitution Act, Islam is the State Religion of the Azad Jammu and Kashmir, the most modern and progressive religion of the world having full regard and respect to the rights of the minorities including their right in the property and religious rights. Thus, it is duty of the State and the Government to take all the necessary steps to ensure the protection of religious rights of the minorities according to the injunctions of Islam. The matter raised in this case regarding the piece of land reserved for Sikh religion's purpose require administrative and executive measures. The Government is directed to take necessary action in this regard and if it is proved that any piece of land was reserved and utilized for Gordwara, a religious sacred place of Sikhs, necessary measures should be taken for restoration of the same to its original condition as for as possible and also for its protection."
11. We do not feel any hesitation in holding that according to the nature of the suit land, neither it is an evacuee land available for allotment to any person, nor, it can be used for any other purpose as it is proved from the record that the land is permanently dedicated for (temple). In this regard in the supra case, we have already issued direction for restoration of such like places to their original position.
12. The proposition involved in this case, in our opinion, is one of the public importance, specially, the proposition of religious rights of the State Subjects irrespective of their caste, creed or religion, is involved. Therefore, it is felt advised that for maintaining the harmony among the people of different religions and maintaining the peace in the state, due protection and respect of religious places and symbols, is the duty of the State/Government. Under the provisions of section 3 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Islam is the State religion which theoretically and practically is a religion of peace. The term 'Islam' grammatically means peace, protection and security. Historically, it has been undoubtedly proved that Islam has provided complete code of life which practically maintains the unprecedented peace in the society, human dignitaries and inter-religion harmony among the state subjects. In Islam, the disgrace of other religions' dignities and religious symbols or places is strictly' prohibited. In this perspective we also called for report of on spot existing condition of the land. It will be useful to refer here the report submitted by the Deputy Commissioner, which reads as follows:-- "(1) it would be appropriate and in the interest of general public if in future Government will make efforts not to ' It appears from the report that the disputed piece of land is almost vacant and presently unworkable machinery etc. Is piled up. In this state of affairs while following the direction given by this Court in Rehmatuilah's case, referred to herein above, we once again direct the Government and all the concerned authorities that the land comprising new survey number 26, old survey number 7, be not utilized for any other purpose and be kept vacant as the same is dedicated for religious purpose and if possible the same should be restored to its original condition but neither the same shall be allotted to any person nor brought into use of any other purpose whether official or non-official. If, any of the legal persons representing the religion for which the land is dedicated approaches the Government for ts management or restoration to its original position, the Government and all the other authorities are directed to facilitate such person in this behalf by removing all the obstacles and hurdles, thereof.
13. Now, we advert to another aspect of the matter that the impugned judgment of the High Court is mainly based upon the order of the Custodian passed on the application filed by the respondent-applicant on 03.01.2001. Perhaps, due to party's recklessness and negligence, the whole true picture has not been brought on record, hence, the real facts remained out of sight of the learned High Court. As narrated herein above, in the facts that the respondent is also allottee of some other land who obtained Proprietary Rights Transfer Order from the Custodian and he has submitted a declaration form regarding the land allotted to him as refugee in which neither he has mentioned nor claimed the allotment of the disputed piece of land rather he has categorically submitted the detailed affidavit. It will be useful to reproduce the same as under:- {{URDU TEXT}} ' The survey numbers mentioned in this affidavit have been claimed by the respondent in his declaration form. In the declaration form, it has been further stated that: {{URDU TEXT}} Thus, according to the respondent's own affidavit and declaration form which is also solemnly affirmed, this piece of land is not allotted to him. According to the celebrated principle of law, he is estopped by his own conduct and now he cannot claim the allotment of the land.
14. Under the statutory provisions of law, the learned Custodian who has passed the order dated 13.11.2003 did not bother even to examine his own record available in his own office which resulted into drawing the incorrect conclusion. The learned Custodian has himself issued the Proprietary Rights Transfer Order and from the record maintained by the Custodian office containing the affidavit and declaration form submitted by the respondent, it is proved that he is not allottee of the piece of land, i.e,, the subject matter of this case. Thus, the order passed by the Custodian is factually incorrect and against law. Moreover, the Custodian has got no jurisdiction to entertain the application, like The Custodian is creature of statutory law prescribing its powers and duties and he can only exercise the powers vested in him under law.
' Thus, the order of the Custodian dated 13.11.2003 being without jurisdiction and against law is declared void and recalled.
15. For the above stated reasons this appeal stands accepted and it is declared that the piece of land comprising new Survey No, 26, old survey number 7, is dedicated permanently for religious purpose i.e,, (temple) and the same is neither available for allotment, nor has been allotted to the respondent. Therefore, the order of the Custodian dated 13.11.2003 is declared without lawful authority and the appellants herein are directed to comply with the direction given in paragraph 12 of this judgment.
' This appeal stands disposed of in the term indicated above with no order as to costs.
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